Court backs Walgreens' objection to tobacco ban

Tobacco sales

Published 4:00 am, Wednesday, June 9, 2010

San Francisco's first-in-the-nation ban on tobacco sales in drugstores appears to be unconstitutional because it exempts supermarkets and big-box stores that have pharmacies, a state appeals court said Tuesday.

But the First District Court of Appeal left open the possibility that the legal defect could be cured by extending the tobacco ban to all stores that sell prescription drugs, rather than repealing it. The court referred that question to a Superior Court judge.

The ruling is "a powerful condemnation of the legality of the ordinance," said Daniel Kolkey, a lawyer for Walgreens, which filed the suit.

The measure, effective in October 2008, prohibits sales of cigarettes and other tobacco products at San Francisco's nearly 60 drugstores.

Walgreens, which owns most of the drugstores, claimed the ordinance discriminated arbitrarily by allowing food stores with pharmacies to sell tobacco products.

City health officials defended the distinction by arguing that people go to drugstores to get well and that allowing tobacco sales in those stores sends a misleading message. That message, they said, is much stronger in drugstores than in a Safeway or Costco, which gets a much smaller percentage of its revenue from its pharmacy.

The appeals court said that justification is flimsy on its face, and even more so for a chain store like Walgreens that sells food and drinks.

"There is no difference in any implied message that might be conveyed by selling tobacco products in the two types of stores," said Presiding Justice William McGuiness in the 3-0 ruling.

The court stopped short of overturning the ordinance and instead reinstated Walgreens' suit, which a judge had dismissed.

Although the court rejected the city's arguments, Deputy City Attorney Vince Chhabria said the ruling wasn't necessarily a defeat because it could lead to a broader ban.